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Federal judge takes no immediate action on whether to return east bank levee authority wetlands damage suit to state court

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Attorneys for the Southeast Louisiana Flood Protection Authority-East and oil, gas and pipeline companies argued in U.S. District Court in New Orleans Wednesday over whether the authority's wetlands damage lawsuit should be returned to state court.
(The Times-Picayune archive)

A wetland damages lawsuit filed by the east bank levee authority against nearly 100 oil, gas and pipeline companies should remain in federal court because the authority's claims are made under federal laws, attorneys for the companies argued Wednesday.

The levee authority lawsuit asks that the energy companies restore damage they did to a "buffer zone" of wetlands outside the east bank levee system or pay for damage that can't be repaired, with the money going to improve levees. The authority contends the wetland losses resulting from the dredging of canals and pipeline pathways have reduced the ability of levees to protect residents.

Robert Meadows, an attorney representing the oil and gas companies, argued that the authority bases its complaints on allegations the companies violated one of three federal laws, the Rivers and Harbor Act, the Clean Water Act, or the Coastal Zone Management Act. Of the 200 permits for wetland work cited in the suit, he said, 84 were issued by federal agencies. The suit contends that the energy companies violated state law by not following the restrictions outlined in those permits.

He said that if the authority were successful, each restoration project also would require a permit from the federal Army Corps of Engineers.

Meadows also argued that the case should be governed by federal maritime law, since earlier rulings by the U.S. 5th Circuit Court of Appeals have found that dredging operations are governed by maritime law.

Meadows also argued that the case falls under a federal law governing class action lawsuits because the levee authority is acting as the agent for thousands of residents and businesses that would be affected by the reduced levee protection.

But Jim Swanson, an attorney representing the levee authority, countered that the lawsuit focuses specifically on the companies' violations of state law. In some cases, the state law requires the companies to comply with the three federal laws, he said, but it's still the violation of state laws that should govern the case.

Swanson also countered Meadows' class action federal law argument, saying it's the authority alone that is filing the suit and that the wetland restoration and money the suit requests would go only to the authority.

Swanson also disagreed with Eagan's conclusion that only FERC can regulate pipeline companies, pointing to U.S. Supreme Court cases that found only two other federal agencies had such exclusive authority to pre-empt state regulation.

Attorney Alonzo Wilson, also representing the levee authority, told Brown that another argument of the energy companies -- that the lawsuit includes land and water areas under the exclusive control of the federal government -- was incorrect. The energy attorneys had argued that the Chandeleur and Breton islands and parts of the Delta National Wildlife Refuge should be considered under sole federal ownership. But Wilson said none of the wells or other facilities cited in the lawsuit fall within those areas.

When Meadows suggested that if the levee authority would limit its suit to areas included in a map that excluded those areas, the energy companies would agree to that stipulation, levee authority attorney Gladstone Jones said that he'd have to discuss that limitation with the authority.

At the end of the arguments, Brown took no immediate action on whether to return the suit to state court. She gave no indication when she may rule on the matter.